Decision Date: 07/31/95 Archive Date: 01/17/96
DOCKET NO. 92-22 743 ) DATE
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
1. Entitlement to service connection for residuals of a left
ankle sprain.
2. Entitlement to service connection for residuals of a
fracture of the right arm.
3. Entitlement to service connection for residuals of a
scraped back.
4. Entitlement to service connection for residuals of a cut
on the nose.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
B. Anderson, Counsel
INTRODUCTION
The appellant had active service from July 1956 to May 1958.
Originally, this appeal arose from February and September
1991 rating decisions of the St. Petersburg, Florida,
Regional Office (RO). In those decisions, entitlement to
service connection was denied for residuals of a left ankle
sprain, residuals of a fracture of the right arm, residuals
of a scraped back, and residuals of a cut on the nose.
Thereafter, the issues were readjudicated following the
receipt of new and material evidence. In July 1994, the
Board of Veterans' Appeals (Board) remanded the case to the
RO for additional development of the evidence.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant's primary argument is that the injuries to his
left ankle, right arm, back and nose happened in October
1956. He asserts that an 8-inch pin and a 9-inch pin were
placed in his right arm, and that 8 or 9 casts were put on
his leg. He maintains further that, in approximately August
1957, it was discovered that the pins were coming through at
the elbow joint, and these were removed at a hospital in
Germany.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the appellant's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
supports a grant of service connection for residuals of a
fracture of the appellant's right arm and residuals of left
ankle injury. Also, it is the decision of the Board that the
preponderance of the evidence is against the claims for
service connection for residuals of a scraped back and
residuals of a cut on the nose.
FINDINGS OF FACT
1. The RO has attempted to obtain all relevant evidence
necessary for an equitable disposition of the appellant's
appeal.
2. Service morning reports show that the appellant was
"sick" in hospitals during the periods of November 1956 to
January 1957, and March to April 1957.
3. On disability evaluation examination of the appellant by
the Department of Veterans Affairs (VA) in September 1994, an
old healed fracture was documented involving the right
olecranon with moderate traumatic arthritic changes within
the elbow joint and some narrowing of the distal radiocarpal
joint. Residuals of old fracture or injury of the left ankle
were identified.
4. Residuals of a left ankle sprain and residuals of a
fracture of the right arm are attributable to service.
5. Residuals of a scraped back and a cut on the nose are not
clinically documented.
CONCLUSIONS OF LAW
1. Residuals of a fracture of the right arm and residuals of
a left ankle injury were incurred in the appellant's
peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991).
2. Residuals of a scraped back and residuals of a cut on the
nose were not incurred or aggravated in the appellant's
service, nor may arthritis of the lumbar spine be presumed to
have been incurred in peacetime service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R.
§§ 3.307, 3.309 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has found that the appellant has presented claims
which are well grounded within the meaning of 38 U.S.C.A.
§ 5107(a). In order to assist the appellant in the
prosecution of his claims, this case was remanded to the RO
in July 1994 in order to attempt to obtain clinical records
from various hospitals mentioned in the service morning
reports and by the appellant. In addition, the appellant was
invited to submit alternate forms of evidence in support of
his claim and to report for a comprehensive examination by
VA. Attempts by the RO to obtain the additional evidence
proved fruitless. The appellant responded to the effect that
any additional documents would be within his service medical
records. The service department has reported that the
appellant's service medical records are currently
unavailable, presumably having been damaged in a fire at the
National Personnel Records Center in 1973. Disability
evaluation examination of the appellant was accomplished by
the RO. The Board is satisfied that all relevant facts have
been developed to the extent possible. No further assistance
to the appellant is required to comply with the duty to
assist mandated by § 5107.
Service department morning reports show that the appellant
was "sick" in hospitals during the periods of November 1956
to January 1957 and March to April 1957. The conditions
causing the hospitalizations are unknown. The appellant
claims that a left ankle sprain, a fracture of the right arm,
a scraped back and a cut on the nose were sustained in an
injury in service and treated during these hospitalizations.
Under the circumstances presented by this case, the Board
finds no reason to question the appellant's recollection of
the events in service. The periods of hospitalization were
obviously lengthy enough for treatment of more than
insignificant medical problems.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in
peacetime line of duty. 38 U.S.C.A. § 1131. Where a veteran
served continuously for ninety (90) days or more during a
period of war or during peacetime service after December 31,
1946, and arthritis becomes manifest to a degree of
10 percent within one year from date of termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.307, 3.309.
It is the judgment of the Board that the claimed injuries
could well have occurred in service, permitting service
connection for chronic disability resulting therefrom. In
this regard, it should be observed that there must be
evidence both of a service-connected disease or injury and of
present disability which is attributable to such disease or
injury. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992).
A claimant is not entitled to some sort of benefit simply
because he had a disease or injury while on active service.
That is a mistaken belief. Congress specifically limits
entitlement for service-connected disease or injury to cases
where such incidents have resulted in disability. In the
absence of proof of a present disability, there can be no
valid claim. Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992).
With these principles in mind, it is the judgment of the
Board that service connection is warranted for residuals of a
fracture of the right arm and residuals of left ankle
injury, but not for the other claimed disabilities. The
appellant was examined by VA for disability evaluation in
September 1994. He gave a history of having sustained the
claimed injuries in a motor vehicle accident in late 1956.
Physical examination revealed some bony enlargement of the
right olecranon process and some slight bony thickening of
the left ankle; otherwise, physical examination was
essentially within normal limits. The diagnoses were lumbar
back pain, etiology undetermined, possible early degenerative
arthritis; traumatic arthritis, right elbow; and pain, left
ankle, etiology undetermined. X-ray examination of the
appellant's lumbosacral spine revealed minimal degenerative
arthritic changes throughout the lumbar area, but these were
judged to be were consistent with the appellant's age.
X-rays of his left ankle revealed the mortise to be well
maintained, and there was no evidence of any recent or old
injury, according to 1 report. There was no evidence of any
degenerative arthritic changes. However, according to
another examiner, there was evidence consistent with an old
fracture or an old injury of the left ankle on X-ray
examination. Residuals of a remote scrape of the back and a
cut on the nose were not clinically documented. On the other
hand, X-rays of the appellant's right forearm revealed an old
healed fracture involving the olecranon with some
irregularity of the articulating surface of the elbow joint
and some moderate traumatic arthritic changes within the
elbow joint and some narrowing of the distal radiocarpal
joint.
The clinical evidence of record is consistent with an old
healed fracture involving the appellant's right arm and old
trauma of the left ankle, and this, in turn, is consistent
with his history of injury and treatment during service.
While the appellant may indeed have scraped his back and cut
his right nose in service, continuing disability is not
shown, thereby precluding service connection.
ORDER
Service connection for residuals of a fracture of the right
arm and residuals of left ankle injury is granted. Service
connection for residuals of a scraped back is denied.
Service connection for residuals of a cut on the nose is
denied.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.